University of San Diego Digital USD Law Faculty Works Law Faculty Scholarship 9-2015 Libertarianism and the Charitable Tax Subsidies Miranda Perry Fleischer University of San Diego School of Law Follow this and additional works at: http://digital.sandiego.edu/law_fac_works Part of the Tax Law Commons Digital USD Citation Fleischer, Miranda Perry, Libertarianism and the Charitable Tax Subsidies (April 27, 2015). Boston College Law Review, Vol. 56, September 2015; San Diego Legal Studies Paper No. 15-189. This Article is brought to you for free and open access by the Law Faculty Scholarship at Digital USD. It has been accepted for inclusion in Law Faculty Works by an authorized administrator of Digital USD. For more information, please contact [email protected]. LIBERTARIANISM AND THE CHARITABLE TAX SUBSIDIES MIRANDA PERRY FLEISCHER* Abstract: Despite libertarianism’s political popularity, tax scholarship is largely silent about the interaction between libertarian principles and the structure of our tax system. To fill that gap, this Article mines the nuances of libertarian theory for insights into one feature of our tax system—the charita- ble tax subsidies—and finds some surprising insights. Although one strand of libertarianism suggests that charitable tax subsidies are in and of themselves illegitimate, several other understandings of libertarianism see a role for the state to engage in a varying amount of redistribution or to provide varying amounts of public goods. Surprisingly, some readings even lend weight to the common criticism that the charitable tax subsidies do not do enough to assist the poor and disadvantaged. Only a lenient interpretation of classical liberal- ism that conceives of a vibrant non-profit sector as a public good in and of it- self and an expansive reading of left-libertarianism support something akin to our current structure, in which elite cultural institutions such as the opera are subsidized even if they provide no free or discounted services to the poor. In addressing these questions, this Article rounds out a series on the interaction of distributive justice and the charitable tax subsidies. INTRODUCTION Although many Americans claim to subscribe to libertarian theories of justice, tax scholarship is largely silent about the interaction between liber- tarian principles and the structure of our tax system.1 This is not surprising, © 2015, Miranda Perry Fleischer. All rights reserved. * Professor of Law, The University of San Diego. I would like to thank Larry Alexander, Michael Doran, Richard Epstein, Dov Fox, Maimon Schwarzschild, Mila Sohoni, Chris Wonnell, participants in the 2013 Columbia Tax Scholars Workshop and in the Pepperdine School of Law Tax Policy Colloquium, and especially Matt Zwolinski for extremely valuable feedback. I would also like to thank Ally Keegan for helpful research assistance. 1 Notable exceptions include work by Richard Epstein and Milton Friedman. See, e.g., MIL- TON FRIEDMAN, CAPITALISM AND FREEDOM 172–76, 191–92 (3d ed. 2002); MILTON FRIEDMAN & ROSE FRIEDMAN, FREE TO CHOOSE: A PERSONAL STATEMENT 120–27, 306–07 (1980); Rich- ard A. Epstein, Can Anyone Beat the Flat Tax?, 19 SOC. PHIL. & POL’Y 140 (2002); Richard A. Epstein, Taxation with Representation: Or, the Libertarian Dilemma, 18 CAN. J.L. & JURIS. 7 (2005); Richard A. Epstein, Taxation in a Lockean World, 4 SOC. PHIL. & POL’Y 49 (1986); see also Jennifer Bird-Pollan, Death, Taxes, and Property (Rights): Nozick, Libertarianism, and the Estate Tax, 66 MAINE L. REV. 1 (2013) (challenging libertarian arguments against the estate tax); David G. Duff, Private Property and Tax Policy in a Libertarian World: A Critical Review, 18 CAN. J. L. & JURIS. 23 (2005) (first discussing the tax policy implications of libertarian theories of 1345 Electronic copy available at: http://ssrn.com/abstract=2599675 1346 Boston College Law Review [Vol. 56:1345 for what springs to mind when one hears the word “libertarianism” is Rob- ert Nozick’s argument that taxation is slavery.2 If all taxation is indeed slav- ery, why bother analyzing libertarian principles for insights into our tax sys- tem? This dismissal, however, ignores the diversity of libertarian thought.3 To that end, this Article mines the nuances of libertarian theory for insights into one feature of our tax system: the charitable tax subsidies. Exploring the nuances of libertarian theory yields some surprising re- sults. Some strands of libertarian thought suggest that the charitable tax subsidies are in and of themselves illegitimate. These strands of libertarian- ism forbid not only redistribution but also anything except the most mini- mal provision of public goods needed to protect life and property, such as defense. Yet several other strands do see a role for the state to produce vary- ing amounts of public goods and engage in some redistribution, ranging from providing a safety net to the very poorest to assisting victims of past injustices. Only a lenient interpretation of classical liberalism and an expan- sive version of left-libertarianism, however, support something more akin to our current structure. By examining libertarianism, this Article rounds out a series examin- ing what each theory of distributive justice common to legal scholarship suggests for the chartable tax subsidies. The goal of the series is two-fold. First, it argues that even though the charitable tax subsidies are inherently redistributive, existing scholarship on the topic (which focuses on efficiency and pluralism) generally ignores serious discussions of distributional is- sues.4 This oversight leaves key questions unanswered in both current law and scholarship: should charities that receive tax benefits be required to help the poor? How valid are common criticisms that subsidized groups do “too much” for the wealthy and “too little” for the poor? How should we private property rights on their own terms and then challenging those theories). Scholars have paid much more attention to the interaction of libertarian principles and the broader legal system; per- haps the two most prominent examples are Epstein and Randy Barnett. See, e.g., RANDY E. BAR- NETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (rev. ed. 2014); RANDY E. BARNETT, THE STRUCTURE OF LIBERTY: JUSTICE AND THE RULE OF LAW (2d ed. 2014); RICHARD A. EPSTEIN, PRINCIPLES FOR A FREE SOCIETY: RECONCILING INDIVIDUAL LIB- ERTY WITH THE COMMON GOOD (2002) [hereinafter EPSTEIN, PRINCIPLES]; RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD (1995) [hereinafter EPSTEIN, SIMPLE RULES]; RICHARD A. EPSTEIN, SKEPTICISM AND FREEDOM: A MODERN CASE FOR CLASSICAL LIBERALISM (2003) [hereinafter EPSTEIN, SKEPTICISM]; Randy E. Barnett, Afterword: The Libertarian Middle Way, 16 CHAPMAN L. REV. 349 (2013). 2 See ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 169 (1974). 3 For a discussion of the term “libertarianism,” see infra notes 68–75 and accompanying text (Part II). 4 See Miranda Perry Fleischer, Theorizing the Charitable Tax Subsidies: The Role of Dis- tributive Justice, 87 WASH. U. L. REV. 505 (2010) [hereinafter Fleischer, Theorizing]. Electronic copy available at: http://ssrn.com/abstract=2599675 2015] Libertarianism and the Charitable Tax Subsidies 1347 evaluate the distributional impact of various proposals to reform the tax benefits given to the non-profit sector? Second, the series explores how each theory of distributive justice common to tax scholarship (equality of opportunity theories, utilitarianism,5 and libertarianism) provides insight into those questions.6 A nuanced analy- sis of libertarianism yields counterintuitive answers. One reading of mini- mal state libertarianism, for example, suggests that only charities that help the very poor should be subsidized, whereas another implies that only or- ganizations assisting individuals who have been harmed by past injustices should be subsidized. These two interpretations lend weight to the common criticism that the charitable tax subsidies do not do enough to assist the poor and disadvantaged. In contrast, classical liberalism suggests that groups providing public goods should be subsidized regardless of whether they assist the poor. Within classical liberalism, a strict understanding would likely narrow the definition of what counts as a public good suffering from market failure, whereas a more lenient interpretation might conceive of a strong non-profit sector as a public good in and of itself. Only that more lenient reading and an expansive reading of left-libertarianism support our current structure, in which elite cultural institutions such as the opera are subsidized even if they provide no free or discounted services to the poor. Most readings of utilitarianism and resource egalitarianism also suggest that there is something special about groups that help the poor and disadvan- taged. This overlap suggests that the subsidies should be restructured to emphasize aid to such groups.7 In exploring the nuances of libertarian theory, this Article starts from a different baseline from its sister articles. Prior articles first assumed the ex- istence of the charitable tax subsidies as but one part of government efforts to engage in a given type of redistributive activity, and then explored how 5 To be clear, some libertarians and classical liberals—most notably Epstein—employ a utili- tarian framework in defending their views. In the context of this series, however, I am using the term “utilitarianism” to refer to “left” or non-libertarian, non-classical liberal